Synergy Environmental, Inc.
Brian Loughnane, P.G

December 18, 2018

A draft of the PADEP’s Management of Fill Policy is out for review, here are some thoughts from an Environmental Consultant.

Land owners, real estate developers, excavation contractors, municipalities, environmental consultants and lenders need to take note of the upcoming changes that will be occurring with the Pennsylvania Department of Environmental Protection’s (PADEP’s) Management of Fill Policy (Fill Policy).   During mid-November 2018 PADEP issued a notice that the current (first published during 2004 then amended in 2010) Fill Policy is being revised.  A draft has been issued and is out for review until early January 2019.  Projects and activities that involve earth disturbance or excavation will be impacted by the new Fill Policy.

What is Fill (material)?

Civil engineers, excavation contractors and developers have a generic engineering term for soil or crushed stone that is utilized to fill in depressions in the ground surface or create mounds; it is called “Fill Material”. Fill material that was transported from one project site to a different project site was, in essence, loosely regulated by PADEP. However, in 2004 a Clean Fill Policy was issued by PADEP.  This environmental policy was brought into play to ensure that releases of contaminants from one location were not introduced into sites at another location during site development.

The PADEP defines the term “Fill” as “Material used to level an area or bring an area to grade…” . Within the new update of the policy, PADEP states that “Fill” cannot contain reclaimed asphalt pavement, naturally occurring asbestos, mine spoils or acid-producing rock.

PADEP further classifies fill material into either clean fill or regulated fill. PADEP’s defines “Clean Fill” as uncontaminated, non-water soluble, non-decomposable, inert solid material used to level an area or bring an area to grade. “Regulated Fill” is fill that has been affected by a release of a regulated substance and is not uncontaminated material as defined by PADEP.

Clean Fill is good, but what about “Regulated Fill”?

Regulated fill, as dictated by PADEP, may not be obtained from one site and used at another site unless a PADEP Solid Waste Management Act (SWMA) permit has been issued to the user of the regulated fill material.

The policy does not apply to mine land reclamation activities, which are subject to a permit or fill used within the same project area or project right-of-way. Excavation, movement or reuse of fill within a project area or right-of-way is not an activity that requires a SWMA permit.

The policy does not apply to fill that has been placed prior to the effective date of this new policy. It does if the fill is moved to another site or off the project right-of-way after the effective date of the policy.

What’s new?

This is where things get interesting.

The old policy was described in 6 pages; the new policy is now fills 17 pages. So we have more intricacies on how we can or can’t legally use fill within Pennsylvania.

We now have many more defined words and terms in the definitions section. The new policy now includes the definition of “acid producing rock”; “reclaimed asphalt pavement”; and, “used asphalt”.   Why?, because, along with naturally occurring asbestos, and mine spoils which were previously excluded, they are now excluded items from what is defined as “Fill”.  Is this of importance?  YES!  See our examples.

Procedures for sampling of fill materials to determine if they meet contaminant concentration limits for clean or regulated fill have been modified with the new policy. The new policy will no longer use the “clean fill concentration limit” tables that were attached to the current clean fill policy.  Moving forward clean fill is to meet the new policy’s definition of “uncontaminated material” and therefore meet PADEP’s ACT 2, Table 3 and Table 4 Organic and Inorganic concentration standards for soil.  Exceedance(s) of these standards will mean the fill is to be dealt with as regulated fill.  The contaminant concentrations of regulated fill have an upper limit.  When obtaining a SWMA permit (for regulated fill) the new policy refers to meeting the Regulated Fill Concentrations Limits tables for Organics, Metals and Inorganics (GP-1a and GP-1b).   If analytical results of the proposed fill material do not meet the GP-1a and GP-1b concentrations the fill material cannot be used as regulated fill and will therefore not be eligible for a SWMA permit.

Here’s an example concerning acid bearing rock!

Consider a site within Northeastern Pennsylvania, where a road bank is being cut for a roadway widening project. The project requires cutting into fresh bedrock.  But the rock is identified as “acid producing rock”.  The project was intending to send the newly generated “cut” materials (i.e. the new cut and broken stone) to be used as “Fill” at a different and separate project site.  But since “acid producing rock” is identified as the bedrock in the project area the roadway project cannot send off the fresh stone as new fill material for a separate site.   The cut material now needs to be properly disposed of at an approved facility, a cost not incurred on to this type of project in the past.

Here’s an example concerning pavement!

 During site development, a huge parking lot area is demolished. Can the old blacktop/asphalt be sent off-site as fill? The answer is not straightforward. If milled during removal the old blacktop is now defined as “Reclaimed Asphalt Pavement (RAP)” (typically small particles less than an inch in size and produced by mechanical grinding of bituminous pavement surfaces that have not been exposed to regulated substance releases).  By the new policy’s definition of “fill” material with RAP is not allowed to be utilized as fill.  Yet the new policy contains a definition for “used asphalt” and that item is not excluded from fill.  So if the used asphalt is obtained and transferred in pieces that are greater than one inch it can be sent off as fill as long as it meets the other PADEP clean and regulated fill requirements.

As mentioned previously in the article, the public comment period will close on January 8, 2019.

Mr. Loughnane is a Professional Hydrogeologist and Director of Geosciences at Synergy Environmental. He works out of the Royersford, PA Office.